Description of the legal term Litigation Privilege:
Litigation privilege is a legal concept that exists within the law of the United Kingdom, which forms part of the wider law of privilege. Privilege, in the legal context, is a principle that allows a party to withhold certain documents or information from being disclosed in legal proceedings. Specifically, litigation privilege is designed to protect the confidentiality of communications between a client and their lawyer or communications made in contemplation of litigation.
This type of privilege is applicable when a litigation is either ongoing or contemplated, which means it is reasonably in prospect. Communication must have been made for the sole or dominant purpose of litigation to be privileged. It extends to communications with third parties, such as experts, and includes consultations or the gathering of evidence. This is crucial because it ensures that a party can prepare their case as thoroughly as possible, without fearing that every document or expert report they create might be exposed to the other side.
The key aspects that must be satisfied for litigation privilege to apply are: (1) litigation must be in progress or in contemplation; (2) the communications must have been made for the sole or dominating purpose of conducting that anticipated litigation; (3) the litigation must be adversarial, not investigative or inquisitorial; and (4) the communication must be confidential.
It is important to note that not all documents created by a party during litigation are protected by this privilege. For instance, documents created in the normal course of business are not covered. Furthermore, once a document has been shared with a third party in a way that breaks confidentiality, the protection is likely lost. If a dispute arises about whether a document is privileged, a court may examine it (in private, without disclosing it to the other side) to determine whether the privilege applies.
There are important public policy reasons behind the allowance of this type of privilege. It is predicated on the basis that access to justice and the right to a fair trial are paramount, and a party should be able to seek and receive legal advice, as well as prepare their case, without external pressures or the fear of sensitive material being used against them.
Legal context in which the term Litigation Privilege may be used:
Imagine the scenario: a large corporation is facing a potential lawsuit for breach of contract, and they have begun to consult their legal advisors. They have also employed external accountants to produce a report on the financial implications of the alleged breach. Because there is a significant chance of litigation, the corporation informs the accountants that the report is to be prepared specifically for the purpose of litigation. When the other party requests disclosure of this report during the litigation, the corporation claims litigation privilege.
The opposing party challenges this, but because the report was produced at a time when litigation was in reasonable prospect and was made for the sole or dominant purpose of the anticipated litigation, the court upholds the privilege. Consequently, the other party does not gain access to the potentially sensitive report, allowing the corporation to maintain a strategic advantage by knowing the financial risks without disclosing those details to their opponents.
In another example, consider an individual who believes they have been wrongfully dismissed from their job and is considering suing their former employer. They hire a solicitor and begin corresponding about the potential case. These early communications, which may include candid assessments of the strengths and weaknesses of their case, are covered by litigation privilege. This ensures that the individual can speak freely with their legal counsel about their situation, knowing those communications are protected from disclosure and cannot be used by the former employer in the pending or contemplated litigation.
Litigation privilege plays an essential role in the administration of justice. It underpins the adversarial system by ensuring parties can prepare for litigation with candour and without undue interference. It is fundamental to the legal process, encouraging full and frank communication between legal professionals and their clients and between the clients and third parties enlisted for litigation purposes. Safeguarding the integrity and efficiency of legal proceedings, litigation privilege is a cornerstone of the British legal system’s commitment to fair trials and the proper administration of justice.